September 22, 2011

From an interview in the NYRB that you won't be able to access in full if you are not a subscriber:

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice. To do this, the judge may fall back on some strong moral or even religious feeling. Of course, some judges fool themselves into thinking there is a correct answer, generated by a precedent or other authoritative text, to every legal question.

Unspeakable? Really? I hear it all the time... often from the same leftish professors who've made a point of loathing Posner. I've heard a lot of that loathing because my law school lies within the 7th Circuit, where Judge Posner sits... and where he will remain, because the place where his opinion really is unspeakable is (as Shea notes) before the Senate Judiciary Committee, if you want to get confirmed to a new judicial appointment.

And thus are we deprived of the very best minds, as Posner — about as good as we can get in a judge — bluntly points out:

One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.

ADDED: Here's the book the NYRB interview is based on: "How Judges Think." It's excellent. (But it's not available on Kindle, annoyingly.)

Judge Posner restricts this to cases where "there is no precedent or other text that is authoritative," so there is nothing objectionable here. In fact, it is how the Common Law gets made.

The liberal Democrats position on the Constitution as a "living document," and any judge is free to reinterpret it according to modern "moral standards" (i.e., current fashion in liberal Democrat circles),is a horse of a very different color.

One of the most interesting Federal Judges and among the great intellectuals of our time.

Notice he has written so many books that the Wiki entry is for "selected books."

The Journal of Legal Studies has identified Posner as the most cited legal scholar of the 20th century.

"Nobel Laureate economist Robert Solow lavished praise on Posner's fecundity, observing: "he [Posner] is an apparently inexhaustible writer on…nearly everything. To call him a polymath would be a gross understatement. . . Judge Posner evidently writes the way other men breathe."

Posner is too old to move up to SCOTUS now. He is 72. That he did not go up to the Supremes is more a case of bad luck and not being in the right place at the right time. George H.W. Bush should have nominated him instead of Souter.

In the absence of precendent or authoritative text, the judge must make a decision. How to do so? Posner offers a solution: "the judge may fall back on some strong moral or even religious feeling." This obviously includes ideology.

But Posner also offers three tests for the fallback:

1) The decision must be reasonable.2) Other judges would find it reasonable.3) It is explicable and reasonable to lay people.

Posner accepts the possibility of what Althouse says she hears "all the time" but in doing so he sets up a series of tests to trip up ideologues.

Well, Posner calls himself a pragmatist, but he's really a legal realist, a school so named because they don't really believe in law.

That's a little snide, of course. Well, Posner's thesis is that quite often, at an appellate level, the legal materials are too vague to be any help: If they're clear, why is there an appeal? He has dozens of books (including the one that Althouse mentions, although I differ as to its merits), interviews, and panel appearences to this effect, and it has an appeal to it because at a high level of generality, no one can dispute the point that the legal materials are sometimes unclear in appellate cases. The problem is that the number of those cases where the legal materials—I'm talking about the text, tradition and history, precedent, analogical reasoning, lexical aids like dictionaries, canons, and so on—are truly indeterminate are few, and when it happens—as it did in United States v. Santos, for example—there are traditional practices like the rule of lenity to decide the question. And when all else fails, within that very narrow number of cases, I don't think anyone objects to using the now-customary adjuncts to legal materials, which is what Posner usually wants to use: pragmatism ("what is the best result") and economics ("what is the most efficient result"). But I don't think it happens as often as Posner would like, save in common-law and quasi-common law cases such as antitrust and maritime law. It's obvious why Posner wants us to think that this is commonly true, of course; think about his incentives! He likes to use those last resort methods as first resorts. They're more fun and it's more liberating for judges.

Simon has the best take on Posner. Read enough Posner and the inescapable conclusion to be drawn is that Posner thinks Posner would do just fine as the final arbiter of everything in the sociocultural/legal heavens..

Actually, my objections to judges basing opinions on their religious beliefs is based n non-religious feelings. Since, this is one quote taken out of context and I haven't read the boook, I don't want to jump on it too much, but in cases where there is no guiding authority, judges could rule based on many pragmatic (as opposed to explicitly moral or religious) grounds such as:

Which ruling produces the most reliable rule that is easy for the parties governed by it to understand & apply;Which ruling has the least apparent risk of unintended consequences;Which ruling will cause the least mischiff if I am wrong, but the ruling is protected by stare decisis;Which rule is easiest to contract or insure around;which rule provides the least incentive for bad behavior;which rule would distort the economy the least; etc.

If a judge finds a particular potential outcome to be morally repugnant, the first step should be to interrogate and dissect that moral intuition to find out whether it is based on principles that could apply, or assumptions that may or may not apply. Then determine whether the underlying grounds for the moral intuition can be the basis for a sound ruling.

The judge in a hard case without precedent or codified law to cite must still decide the case.

Far better are the well written opinions announcing a rational rule that will be accepted by most citizens than the hodge podge of confusion often written by a wimp judge who will not decide a new rule that the future cases should be governed by. Make up a good one...that's why you are jurists.

Whatever are the latest legal situations, it uncannily also will be arising all over town for several more years.

The Bar needs to be able to tell our new clients with theses same facts where the boundaries are in dealing with this newly arisen set of human conflicts needing court resolution to make peace.

Posner specifically limits the cases under which he would use this rule to those where no case law or precedent exists.

But if there is one thing that defines the left, it is that they have no underlying moral or religious standards whatsoever, no core principles or ethics upon which to draw, other than the Bible of St Karl of Marx.

Isn't that what the whole concept of a "living constitution" is all about under Critical Legal Theory? The law and rules and standards are written by the rich to continue to oppress the people, and therefore must be re-interpreted, rewritten, twisted, and/or ignored in order to bring about a society based on "social justice" and "economic equality", the definitions of which are also nebulous and highly flexible.

After all, everything written or spoken is "just words", which mean whatever the CritLegal lawyer or judge or activist believes they should mean, precedent or case law be damned.

It's what drives the Community-Organizer-in-Chief. I hear it's the philosophy of "law" that prevails at nearly all the law schools now.

I don't want to bash Posner, but I have wanted to get this off my chest for a while.

Everyone who studies law encounters Posner, and I fancy that I'm not unique in my flightpath. At first blush, you're just blown away! The writing seems exciting and breezy and confident, the methodology seems fresh and to-the-point, the reasoning seems airtight and indisputable, and you listen to the oral arguments and he seems like an incisive guy who just wants to cut past the lawyers' canned answers and get to the point. (After all, as he and others have explained, the judges—unlike counsel—know whch issues will decide the case.)

But as time goes on, he wears on you. The writing style, you start to realize, is actually very facile and glib, and leaves a lot to be desired, especially when thrown into relief by reading opinions where his colleagues weigh in—whether more traditionally judicial like those of Bauer and Sykes, or more direct like those of Easterbrook or the late Evans, all of whom are terrific. As the writing, so the reasoning, which likewise starts to feel facile. You start feeling like you ought to be checking the magician's hat. And his performance at argument starts to sound irascible, pedantic, and almost bullying at times; one time not long ago, I actually blurted out "just shut up and let her answer!" at my computer screen. (He didn't.)

For me, the break point came when Posner blithely pontificated on a subject that I happened to know quite well, and despite his confident, crisp reasoning, he was miles off. And when you have that experience, you start to ask yourself: Is this just an off-day for him—would I have seen through the Christo-style veil even if I didn't know the subject material that well? Or is this actually typical, and I just don't notice it because I don't know the materials well enough to realize its shortcomings? Pace Arthur C. Clarke, any sufficiently advanced magic is indistinguishable from science.

Posner is one of the great judges of the era; no doubt about that. I merely suggest that we see him as Judge Posner, an interesting and productive jurist and public intellectual, not as "Saint Richard the much-cited."

Finally, I've said "you" a lot, and indicated that I think this experience is not uncommon. Well, perhaps all of this is just idiosyncratic to myself and I'm mistakenly generalizing my own experience. And fundamentally, that's the problem with Posner's book, cited by Althouse: Qua "How Richard Posner Thinks," it's great.

The whole concept of Western law stems in great part from the Old Testament and, particularly, the Ten Commandments; hence, the idea that we have "inalienable rights", but the Lefties want us to buy the idea it's all relative, so Posner's idea is "unspeakable" (the conviction that dare not speak its name?).

You can quote the Euros, old TV shows, Karl Marx (the worst religion of all) in your decisions, but not your religion.

Ann, you don't need a subscription.Go to the think, then scrape the title part of the url:court-talk-judge-richard-posnerGoogle that, and you get to the article without the filtering. For whatever arcane business reasons, none of the newspapers filter you if you got there from google.

At bottom, Posner looks at judging as an exercise in self-government intended to serve the goals of "form[ing] a more perfect Union, establish[ing] Justice ... promot[ing] the general Welfare and secur[ing] the blessings of Liberty" for the Nation. That's a list that will appeal to the utilitarian in anyone, and especially someone convinced of his own powers of insight. On that approach, the touchstone for judicial decisions is that their several audiences -- other judges, lawyers generally, the legislative and executive branches and the citizenry at large -- should see them as 'reasonable.'

Reasonableness in this context presupposes a common perspective, which in the law is provided by text and precedent. Where text and precedent fail, Posner necessarily looks elsewhere for that common perspective against which to frame a decision others will deem reasonable. Since the objective is to find social values, goals, ideals and the like that unite us as a poeple, it's fair for a judge to look at any aspect of national life or culture in trying to come up with a decision that others will find reasonable. In a culture as fractured and multi-valent as ours, of course, it's not easy coming up with such a frame of reference, accepted so widely as to provide the common perspective needed to make Posner's 'reasonableness' approach work. But that's what he's trying to do.

Doesn't Justice Thomas take this approach? As I understand him, he reads the Constition in light of the Declaration. The Constitution is designed to serve the goals of the American revolution, for which the Declaration is the best shorthand. It also points to a transcenden standard of right.That helps judges decide what to do when the text cuts two ways. The ideas of the Declaration, of course, include the right of the people to make or unmake their governments. Hence reading the constitution as positive law is an idea of 1776.

I thought the hardest part of a judge's job is the effort she must make to check her feelings at the courtroom door and if needs be override those feelings should they contradict the law's instruction.

In such a hard case, is a judge permitted to do his own emperical research on the topic and rely on it in addition to his moral / religious feeling? Or must he only rely upon that information officially presented in court?

Great article on Posner. I’m not subscribed so I can’t read the full review. It’s my understanding that Posner has made a project of arguing that judges should write explicitly rather than obscurely or in hidden penumbra-like ways whenever judges invoke moral and religious sentiments. Explicit reference allows review. I like what Posner said about Scalia and Thomas on the 11th Amendment, that is, we needn’t invoke conspiracy theories for explaining why they seemingly depart from the text (might or might not be ‘fooling themselves’) when they use “implicit” arguments. The trick is to get the implicit stuff out in the open for review. IMHO.

Posner’s idea that Justices are just “competent” rather than “geniuses” strikes me as a plea for deference rather than perfect agreement among judges. Deference in the overall context of Posner’s argument about invoking religion in ways that are reasonable before other judges. It’s an appeal for reasonable play in what’s reasonable. Even if what’s ‘reasonable’ for Posner isn’t an appeal to deference, it’s clear that Posner calls for more explicit open discussion and debate about religious values in the law. Ala Harold Berman, “Law and Logos.”

Posner’s argument about writing legal opinions capable of being understood by lay people is outstanding. This kind of legal writing for ordinary people isn’t meant to convince the ignorant sheepish populace as much as allow ordinary people into the discussion so they can agree or disagree with judicial opinions. And thus speak up or vote and make the legislative process work. In the tumble of it all.

Posner is not going up to the Supreme Court, ever. And it's not because the left hates him on economics.

It's because the right hates his legal theories.

Posner is a right-wing deconstructionist, which used to be a lot more common. But the right today is populist, not elitist. We believe that judges should follow our written law.

It drives Posner up the wall. He's spent his whole career using his big brain to rip words (and laws) apart.

He specifically says this is in cases where there is no precedent (case law) or authoritative text (law).

Yeah, so he distinguishes precedent and deconstructs the text. And then he's free!

Posner's attitude is like this: "I am the law."

The problem with Posner is that he deconstructs the law that is right there in front of him. He says it doesn't apply. He removes it. And then he says, "oh, now I need to be guided by something else. There's no law. Let me see, what can I use? Not religion, doesn't work for me. Let me think. Oh yes, economics!"

Posner is talking about himself! He's inviting other judges to be as dictatorial as he is. Just substitute "economics" for "strong moral or even religious feeling."

He's a libertarian version of Tribe. Very smart, very lawless.

Another way he's like Tribe, he thinks Roe is a great opinion. Posner will affirm Roe and then find an unenumerated right to prostitution, or an unenumerated right to create a market in fetuses. Who knows what the fuck he'll do, he's a one-man Constitutional Convention.

He will never be nominated for the Court.

And if some dumb ass Republican tries it, the base will rise up and smite thee.

Asking a member of the Black Robe gang to prove the consequences of a decision--why, that's far too much. They usually can't even deal with evidentiary issues (probability not in the legalist's mindstate).

So like ballpark it, and call it equity, or religious-moral feeling ,etc

mariner, that's interesting, I'd not seen that before. But yeah, very similar.

Saint Croix said:"Yeah, so he distinguishes precedent and deconstructs the text. And then he's free!"

He fits the model of the common law judge—and Posner is a great common-law judge—that Scalia described as having the approach "what is the best outcome, and how can I remove the obstacles to it?" (I'm paraphrasing).

Benjamin Cardozo, the first Hispanic and second Jewish justice on the SCOTUS claimed himself to be a "plodding mediocrity" and then distinguished between a mere mediocrity, and a plodding mediocrity, who would compensate with hard work for his lack of other gifts.

Someone, somewhere, sometime decided that contracts ought not be enforceable without consideration. Someone, somewhere, sometime decided that promissory estoppel presented an exception to the requirement for consideration. I don't quibble with these principles, but they aren't laws to be discovered in the same way as the principles of thermodynamics. Posner is simply saying that sometimes deciding such things is what is called for.

Someone, somewhere, sometime decided that contracts ought not be enforceable without consideration. Someone, somewhere, sometime decided that promissory estoppel presented an exception to the requirement for consideration. I don't quibble with these principles, but they aren't laws to be discovered in the same way as the principles of thermodynamics. Posner is simply saying that sometimes deciding such things is what is called for.

Yeah, okay. If we're talking slip-and-falls in a Kroger, I'm fine with the common law approach.

If we're talking Constitutional law adjudication, I prefer a popular sovereign that decides (not "someone") what the law is. And I prefer our Justices bound to an Oath to follow our rules. I do not appreciate or applaud legal minds who deconstruct words in order to get around our laws.

"It all depends on what the meaning of the word is, is," as one asshole put it.

"Five votes can do anything around here," as another one liked to say.

These are the same people who struggle to define what a "person" is--see Blackmun's idiotic ramblings in Roe v. Wade--or who think a jury can be six, but cannot be five. Their power corrupts them and their dishonesty shames them. And I'm sorry but I find little resemblence to common law adjudication in this rank textual dishonesty. Which is at the heart of Posner's jurisprudence. Before he gets to free bird, he first has to destroy the words that he has sworn an oath to obey. But of course what good is an oath if you can just argue your away around it? See, for instance, Harry Blackmun's discussion of the Hippocratic Oath in Roe (again). He finds it harsh and unyielding, and since he wants to do something else--since he wants to violate this Oath--he does. And since he cannot be fired, he gets away with it.

Sorry, I do not approve. And I'm afraid the Carhart opinion is a far better example of where this sort of dictator mindset leads us than some damn poetry in a Cardozo opinion.

Saint Croix, I haven't played fantasy supreme court league in years, and I've been too busy to be engaged enough outside of CA7 to name nine any more, but with apologies to the seventh circuit, I'd replace Ginsburg and Kennedy with Frank Easterbrook and Diane Sykes tomorrow if I could.

The well-known defense attorney who wore cowboy clothes (I forget his name; defended Imelda Marcos, I think), said something once on TV during the OJ Simpson trial that I've never forgotten.

He stated that everyone in a courtroom --- including the judge --- makes their decisions based on emotion. The professionals just find a precedent (or several) to support their view, and precedents can always be found.

People may think they're behaving rationally, but we all fool ourselves.

If a case is difficult in the sense that there is no precedent or other text that is authoritative, the judge has to fall back on whatever resources he has to come up with a decision that is reasonable, that other judges would also find reasonable, and ideally that he could explain to a layperson so that the latter would also think it a reasonable policy choice.

Perhaps something got lost in translation, but it seems rather disturbing that a judge would think it is his job to arrive at a "reasonable policy choice".

If there is no text or precedent then there is no law. And if there is no law then it is the duty of the judge to admit that fact and take no further action, leaving it up to the legislature to create law in the applicable area if it so choses.

Men who make money arguing cases the way Spence did ... are among our rare birds. They make lots of income.

The judges are so jealous they could plotz!

Judgeships are for the ones who can't get enough clients.

Hugo Black, on the other hand, represents an American. Who back in 1923, won the contest to become one of Albama's (I think), senators. I know he came from deep down south. And, had to coddle up to the Ku Klux Klan to win his election.

He's not put onto the court until FDR chose him. And, because he had good roots in the Senate ... obviously, confirmation was easy.

(Again, I'm not sure. But I think it was Hugo Black who wrote the Brown V. Board of Education ... way back ... circa 1955? He'd been sitting on our Supreme by then for more than 2 decades.)

If you want to see growth ... on par with how Thomas Jefferson GREW (even though he was a slave holder) ... you'd go to Hugo Black's career. And, you'd be in awe of the man.

Up ahead? If the GOP can't clean up its act. If it can't stop the crazy right from defining the party ... it will lose to Obama in 2012.

And, if Obama wins another 4 years ... you can go and kiss ALL your appointed wish list for Supreme Court judges ... to smithereens.

From Kennedy, to Ginsberg, to Scalia ... they are all ready to "go." Out the door ... One way or another.

While Clarence Thomas, while only 63, has real health issues.

You know? If Obama gets another 4 years? I wouldn't put it past him to put Anita Hill on the court! Sure. She's about the same age as Thomas. But in much better health.

Why would Obama do this? Because when I look into my crystal ball, I ask it to give me results that are funny. And, will make me laugh.)

In the absence of precendent or authoritative text, the judge must make a decision.

The decision which he must make is to inform all parties to the case that no law exists pertaining to the matter at hand, and that their proper remedy, if they still desire one, is to petition their elected representatives to write a law.